Stranded at the altar: gay marriage bill stuck in limbo

In this Oct. 4, 2012 photo, Irene Huskens, right, and her partner, Leia Burks, sit on the front porch of their home in Bowie, Md., finalizing their wedding plans. (AP Photo/David Crary)

The bill was introduced in haste, a month after a media firestorm erupted and critics accused the Conservative government of trying to change the rules on same-sex marriage.

But while the government’s Bill C-32 was supposed to clarify the Civil Marriage Act to ensure thousands of gay couples from abroad who marry in Canada have their unions recognized and can get divorced under Canadian law, it has gone exactly nowhere since it was introduced in Parliament on February 17.

Ten months later the question is: why?

According to a spokeswoman for Justice Minister Rob Nicholson, the opposition is to blame.

“In our government’s view, these marriages should be valid,” said Julie Di Mambro.

“That is why we have introduced legislation to fix the anomaly in the law. We look forward to receiving further cooperation from the other parties to move this legislation forward.”

But Randall Garrison, the NDP’s critic for gay and lesbian issues, said it’s the government’s prerogative to advance legislation it wants to see passed.

“It’s a government bill. They can bring it forward whenever they want,” he said.

The legislation was crafted following a Globe and Mail report last January on a Charter of Rights case involving a lesbian couple — a woman from Clearwater, Fla. and her partner from London, England — who were married in Canada and wanted a divorce.

A legal brief filed by federal lawyers denied the women were even legally married, because neither was legally able to marry a person of the same sex under the laws of Florida or the United Kingdom. “As a result, their marriage is not legally valid under Canadian law,” it says.

The bill seeks to amend the the Civil Marriage Act to re-affirm the validity of same-sex marriages performed in Canada, and also establishes a new divorce process for same-sex couples.

Garrison said the NDP sees problems with the government’s legislation. He introduced a private member’s bill in June that addresses two issues. The first is the case where one partner withholds consent for a divorce or is missing and would have to get a declaration from his or her home jurisdiction (which Garrison calls “impossible” if their marriage is not recognized by their home country). The second would make a change that would allow Canadian courts to address child custody and property issues, or perhaps see it dealt with under Canadian arbitration rules.

“We’ve been trying to get them to make changes in the bill, and they have been reluctant either to make the changes or bring it forward,” said Garrison.

“But we’ve never said we won’t support it, so we’re waiting for them to act.”

He added that he could only speculate as to why the Conservatives would be stalling.

“They have a large number of their caucus who don’t want to vote on any bill to do with anything to do same-sex marriages. And perhaps that makes them cautious,” he said.

Liberal justice critic Irwin Cotler, who as justice minister introduced the Civil Marriage Act that legalized same-sex marriage in Canada in 2005, said in an email he’s “honestly not sure” why it is taking so long for the bill to reach second reading.

He said the government indicated towards the end of the spring session that it would come up but then decided not to call it, and this session the Conservatives have made no reference to it.

“The lack of legal clarity occasioned by the government’s filing is certainly troubling for same-sex non-resident couples, and I am hopeful this situation can be resolved with a clear statute,” Cotler wrote.

“Frankly, the Civil Marriage Act legislation as I introduced it was clear, and as such it’s regrettable that the government’s filing departed from what had previously been understood and practised in Canada with regard to same-sex couples without any notice or explanation, and now without any remedy.”

Martha McCarthy, the Toronto lawyer representing the women seeking the divorce, said she has agreed to stay the case until next June — which may give some indication of the government’s plans.

“I hope the bill will be passed between now and the spring. If it doesn’t, I am going to revise my case,” said McCarthy.

“I believe they’re going to do it. I don’t think they would ask us to wait if they didn’t intend to do it.”

The couple seeking a divorce, identified in court records only by initials to protect their privacy, were married in Toronto in December 2005 and separated two years ago.

Their marriage is not recognized in Florida or the United Kingdom. As a result, they are unable to obtain a divorce in their home cities.

The couple also faced a barrier to divorce in Ontario — a requirement that at least one of them live in the province for a year or more. They have launched a constitutional challenge of that provision in the Ontario Superior Court of Justice.

An estimated 5,000 of the 15,000 or so gay marriages performed in Canada have involved foreigners, mostly American couples.